HB 671 “HOWARD COUNTY – PRACTICE OF MASSAGE – REGULATION” IS CONSTITUTIONALY FLAWED, BASED UPON MISINFORMATION AND MAKES FOR BAD STATEWIDE PUBLIC POLICY

Below find testimony I presented to the Maryland House Health and Government Operations Committee on March 14. Howard County residents–your County officials are generally confused, arrogant, rude and dismissive of the legal issues involved and cannot see the forest for the trees.

HB 671 “HOWARD COUNTY – PRACTICE OF MASSAGE – REGULATION”
IS CONSTITUTIONALY FLAWED, BASED UPON MISINFORMATION AND
MAKES FOR BAD STATEWIDE PUBLIC POLICY

Testimony of Joel B. Hurewitz

I support statewide efforts to confront illegal trafficking and prostitution. However, I am opposed to HB 671 which is naively limited to Howard County. What follows is an objective analysis by a resident of Howard County with no experience with, no interest of, and no contacts in the massage establishment industry in Howard County or Maryland.

HB 671 VIOLATES THE HOME RULE AMENDMENT OF THE MARYLAND CONSTITUTION

Upon reading the Bill, the plan language raises Home Rule issues. The provisions for Charles and Washington Counties refer to “County Commissioners.” Charles is now a code county but was a commissioner county at the time of the adoption of Chapter 501 in 2002. Washington is a commissioner county. Howard is a home rule charter county.

Howard County first enacted a massage establishment code in 1994 before state regulation began in 1996 apparently under the health and welfare powers in the Express Powers Act. Thus, HB 671 is unconstitutional under the Home Rule Amendment for the General Assembly to enact a public local law regarding massage that only applies to Howard County. See the Court of Appeals rulings in Cole v. Secretary of State, 249 Md. 425 (1968), Steimel v. Board, 278 Md. 1, 5, 357 A.2d 386, 388 (1976), McCrory Corp. v. Fowler, 319 Md. 12, 570 A.2d 834 (1990) Park v. Board of Liquor License Commrs. for Balto. City, 338 Md. 366 (1995). If this unconstitutional law is challenged and voided by the courts, the laudable purpose of reducing trafficking and prostitution will be thwarted.

HB 671 DEMONSTRATES A LACK OF UNDERSTANDING
OF THE ORIGINAL LAW FOUND IN 2002 CHAPTER 501

Enacted in 2002, the Fiscal Note for Chapter 501 states: “Charles County is a commissioner county. General Assembly consent is required for enactment of public local laws. The grant of broad legislative authority to inspect and investigate massage businesses provided in this bill would enable Charles County to enact and amend local regulations relating to massage businesses without seeking General Assembly approval.”

Chapter 317 enacted in 2003 extended the law to a second commissioner county–Washington. HB 671 naively only attempts to amend a portion of these Chapters. Unfortunately, it omits the Misrepresentation provisions that states that “an individual may not perform a massage or offer to perform a massage on another person for compensation unless the individual who performs the massage or offers to perform a massage is a certified massage therapist or registered massage practitioner.” This provision is now codified for Charles and Washington Counties in Maryland Health Occupations Code Misrepresentation § 3-502 (d)(1). In addition, section (d)(2) gives law enforcement in these counties the authority to “demand proof of licensure or registration.” Both provisions are omitted from HB 671.

HB 671 DEMONSTRATES A LACK OF UNDERSTANDING OF ENFORCEMENT
ACTIVITIES EXTANT IN CHARLES AND WASHINGTON COUNTIES

The Bill fails to understand the actual enforcement activities extant in Charles and Washington Counties. While speaking to the Health Department officials in Charles County, they had trouble remembering any issues regarding massage establishments. They thought that it had been about a decade since there had been enforcement issues; perhaps it seems back to the enactment of Chapter 501. Possibly, the misrepresentation provision forced any illegal massage establishments to leave the County.

A search of the Code of Washington County finds no local massage ordinance. A phone call to the staff of the County Attorney confirmed that the County apparently never enacted any local ordinance pursuant to their enabling authority.

HB 671 DEMONSTRATES IGNORANCE OF THE MASSAGE
ESTABLISHMENT CODE EXTANT IN HOWARD COUNTY

“Enabling legislation”implies the absence of local laws. Such a conclusion is demonstrably untrue. Howard County already has a Massage Establishment Code in Title 14, Subtitle 8. Any enforcement problems lie with the existing County Code and not the need for “enabling legislation.”

 IS UNCLEAR WHEN HOWARD COUNTY DETERMINED THAT STATE LAW
PREEMPTED HOWARD COUNTY’S MASSAGE ESTABLISHMENT CODE

It is unclear exactly when Howard County came to the conclusion that the state law preempted local regulation. Howard County seemed to have no issue with state regulation in 2012 when the County requested and the Howard County Delegation had enacted HB 1264 as Chapter 713. The legislation referenced the very statute which it appears Howard County now claims preempts regulation: “This section does not apply to an applicant that (1) is a licensed massage therapist or registered massage practitioner under Title 3, Subtitle 5A of the Health Occupations Article; and (2) is the owner, manager, or operator of a sole proprietorship or other massage therapy establishment in which each massage therapist is a licensed massage therapist or registered massage practitioner.” Criminal Procedure §10-233.1 (b). Next, the statute gives special investigative authority to Howard County to regulate under its Massage Establishment Code: “The Howard County Department of Inspections, Licenses, and Permits may request from the Central Repository a state and national criminal history records check on an applicant for: (1) a massage establishment license.” §10-233.1 (c). However, to the extent that HB 671 will give Howard County the authority to regulate those with state massage licenses, Howard County will be prohibited by Chapter 713 from doing criminal history records checks on these individuals.

Howard County also demonstrated that they had no issues with its Massage Establishment Code with the enactment by the County Council on May 21, 2014 of Resolution 51-2014 which set fees for numerous licenses and charges for Howard County including Massage Establishment Licenses:

THE HOWARD COUNTY HUMAN TRAFFICKING TASK FORCE
EXPRESSED NO NEED FOR MASSAGE “ENABLING LEGISLATION”

The Howard County Human Trafficking Task Force issued its report on December 1, 2014. A computer search of the report turns up just two references to “massage.” Neither references regarding massage even amounts to a full sentence. There were representatives on the Task Force from the Howard County State’s Attorney, the Howard County Sheriff, the Howard County Police Department, the US Attorney’s Office, and several Howard County Departments and NGOs. Rather than conclude that there was a need for “enabling legislation” the Task Force only stated:

Support state, federal and local anti-trafficking legislation and regulation. In partnering with the Maryland Human Trafficking Task Force Legislative subcommittee, Howard County Task Force members can work to improve Maryland’s human trafficking laws by lobbying on behalf of important initiatives and increasing the involvement of Howard County residents by encouraging them to contact their representatives on trafficking;related legislation. On a local level, the Howard County Council may consider independent, county, based regulations to address legislative needs identified by the Task Force as being unique to Howard County.

The recommendation was for lobbying for statewide legislation and County regulation, not state enabling legislation. The failure to express any need for “enabling legislation” by a Task Force of knowledgeable individuals a little over one year ago demonstrates by its absence that it is not a necessary priority for Howard County.

THERE IS NO PREEMEPTION BECAUSE HOWARD COUNTY DOES NOT SEEM TO UNDERSTAND THAT ITS OWN CODE EXEMPTS THOSE LICENSED BY THE STATE

Howard County believes that the state regulation “effectively pre-empted the 1994 County law that allowed for local enforcement efforts.” Email of Tamera G. Bulla, Howard County Police Department, Office of the Chief of Police, Planning and Legislative Affairs, January 5, 2016. Bulla’s email continues: “One of the goals of the enabling legislation is to allow Howard County to enact local regulations similar to existing state pawn laws, allowing for administrative inspections and guidelines.” Bulla also wrote “This proposed bill will authorize Howard County to adopt ordinances/regulations relating to massage establishments and the practices of massage therapists, practitioners, and any other individuals who provide massage for compensation.”These statements demonstrate ignorance of the Howard County’s own Massage Establishment Code. The current Howard Code exempts from regulation not only those persons licensed by the State of Maryland but also those working toward a state license:

(7) Massage therapists, i.e. individuals who have:
(I) Successfully completed at least 500 hours of training in an approved massage or bodywork school;
(ii)Passed the national certification examination in professional massage and bodywork
administered by the National Certification Board for Bodywork and Massage Therapies; or
(iii) Successfully completed at least 200 hours of training in an approved massage or bodywork
school, are currently enrolled in such a school, and are working under the direct supervision
of individuals who meet the criteria of subsection (i) or (ii) above.

Howard County Code Section 14.801. Because the Howard County Code exempts those licensed by Maryland there is no preemption regarding unlicensed individuals. Howard County only regulates those without state licenses. Nor does the proposed “enabling legislation”; which attempts to supplement enabling legislation intended for commissioner counties, have language that expresses what specific preemption deficiencies Howard County wants to close. If Howard County intends to regulate individuals licensed by the State Board of Chiropractic and Massage Therapy Examiners, this would make for bad public policy.

HOWARD COUNTY’S RELIANCE UPON THE REGULATION IN CHARLES COUNTY ALSO IGNORES THE FACT CHARLES COUNTY ALSO EXEMPTS
THOSE LICENSED BY THE STATE

Howard County’s reliance upon regulation in Charles County demonstrates a fundamental lack of understanding of Charles County’s ordinance. Like Howard, Chapter 79. Massage Establishments of the Charles County Code exempts from local regulation those licensed by the state: “This chapter does not apply to: A. An individual with a license, registration or other approval issued by the Board to provide massage under §3-5A-05 of the Health Occupations Article” and businesses in which every individual is licensed or registered with the Maryland Board. § 79-2. Scope.

THE MARYLAND BOARD OF CHIROPRACTIC AND MASSAGE THERAPY EXAMINERS HAS NEVER EXPRESSED CONCERN THAT LOCAL REGULATION WAS PREEMPTED

The Maryland Board of Chiropractic and Massage Therapy Examiners does not understand Howard County’s enforcement plan after passage of HB 671. The Board has discussed the bill at each of its monthly meetings since December 2015. Moreover conversations with the Assistant Attorney General for the Board have confirmed that neither the Board nor the Office of the Attorney General has expressed a concern regarding preemption by the state law for regulation by Howard County, the other charter counties, or any municipality in Maryland.

If the Attorney General and the agency responsible for massage regulation do not see the need for HB 671 and have not claimed that there is state preemption, one must question why Howard County’s conclusion that there is state preemption is correct. The Express Powers Act provides that “A county may exercise the powers provided under this title only to the extent that the powers are not preempted by or in conflict with public general law.” § 10-206(b). There is no direct preemption nor any conflict with the general law regulating unlicensed massage therapists as defined in the Howard Code.

THE DIRECTOR OF HOWARD COUNTY’S DEPARTMENT OF INSPECTIONS, LICENSES, AND PERMITS DOES NOT HAVE A PREEMPTION ISSUE BUT RATHER ONLY RECOGNIZES THAT THE COUNTY ISSUES ALMOST NO MASSAGE LICENSES

A telephone conversation with Howard County’s Director of Inspections, Licenses, and Permits demonstrates the internal confusion regarding massage establishments in Howard County. Robert Frances did not recognize a preemption issue with County enforcement. Rather Frances acknowledged that there were actually very few applications for massage establishment licenses. The lack of applications is apparently twofold. One, as stated above, Howard County exempts those licensed by the State of Maryland from the County Code. Second, the industry is savvy enough to avoid regulation.

TO ADDRESS TRAFFICKING AND PROSTITUTION AND A SAAVY INDUSTRY THAT CLAIMED EXEMEPTION FROM MASSAGE REGULATION,MONTGOMERY COUNTY PASSED BODYWORKS REGULATIONS IN 2015

Montgomery County took a totally different approach than neighboring Howard County to deal with illegal activity and a savvy industry. Operators claimed that their services did not fall under the definition of “massage.” Illegal activity was occurring under the guise of reflexology or acupressure. In response, in 2015, Montgomery County adopted Bill 9-15 providing for bodyworks regulations which have been adopted by most municipalities in Montgomery County.

IF ENFORCEMENT IN HOWARD COUNTY HAS BEEN PREEMPTED THEN IT ALSO HAS BEEN PREEMPTED IN OTHER CHARTER COUNTIES AND MUNICIPALITIES

If Howard County lacks enforcement authority because of preemption, then other charter counties and municipalities are also in the same position. The enforcement in these counties especially Montgomery, Harford and Prince George’s should not be undermined by a purported cloud on their authority. Any ambiguities in the state law should be resolved to make it clear that all charter counties and municipalities have enforcement authority.

TRAFFICKING AND PROSTITUTION ARE STATEWIDE PROBLEMS
AND SHOULD NOT BE ADDRESSED ON A PIECEMEAL BASIS

Human trafficking and prostitution is a statewide issue. Dealing with enforcement in a piecemeal approach will only serve to push the problems from Howard County onto its neighbors—counties which generally have larger and more diverse populations and more urban areas with more questionable establishments. Montgomery, Prince George’s and Anne Arundel Counties should not be forced to each come to the General Assembly seeking relief for massage licensing.

WHO EXACTLY DOES HOWARD COUNTY THINK IS ENTITLED TO A MASSAGE LICENSE?

Nobody seems to ask the question: why is anyone without a state massage license entitled to one from Howard County in the first place. Section 3-501 (b) of the Health Occupations Article makes it unlawful to offer massage without a license. The law states “Except as otherwise provided in this title, an individual may not practice, attempt to practice, or offer to practice massage therapy, massage, myotherapy, or any synonym or derivation of these terms in this State unless licensed or registered by the Board.” So Howard County seeks to regulate law breakers who are allegedly performing massage without a state license so that the County can confront trafficking and prostitution. This regulatory loophole is the PROBLEM, not the need for more regulation. The exceptions found in section 3-5A-05 of the Health Occupations Article should be closed and the misrepresentation provision from Charles and Washington Counties extended statewide. Illegal activity would be profoundly reduced. Generally, anyone providing massage without a license is by definition conducting illegal activity and should be investigated because that would be indicative that additional crimes might be occurring, especially at establishments with peepholes and windowless doors. Is it possible that the 7-day exception is used as a subterfuge which actually promotes trafficking in and out of the State? See § 3-5A-05 (2).

CONCLUSION

HB 617 is poorly drafted for the wrong purpose. Howard is not a commissioner county. HB 617 should address enforcement issues not only in Howard County but in other counties and municipalities as well. As Delegate Miller recently told the Baltimore Sun: “My 14 years in the General Assembly have taught me that, sometimes the bill you start with isn’t the bill you need.” HB 617 is not the bill needed to address illegal activity masquerading as massage establishments.

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